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Judgment
ALOK SINGH, J.
K.M. JOSEPH, C.J. (Oral)
In this public interest  litigation, the reliefs sought by the petitioners are as follows:
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“I. Issue a writ, order or direction in the nature of Mandamus directing for institution of High Power Committee for investigating into the illegal
appointments made in Uttarakhand State Legislature Secretariat on the direct recruitment posts during the period January 2016 to December 2016 and
to take appropriate action against the erring officers involved in such illegal appointments.
II. Issue a writ, order or direction in the nature of quo-warranto directing the respondents to show cause as to under what capacity they are holding
the public posts in Uttarakhand State Legislature Secretariat.
III. Issue a writ, order or direction in the nature of quo-warranto declaring that the appointments of private respondents have been made on public
posts in Uttarakhand State Legislature Secretariat, in violation of the provisions of Article 14 and 16 of the Constitution of India and statutory Service
Rules of 2011, and consequently to quash the same.
IV. Issue a writ, order or direction in the nature of Mandamus directing the respondent State authorities to take steps for supplying the vacancies on
the posts illegally occupied by the illegal appointees by direct recruitment as per the provisions of Service Rules of 2011.â€
Petitioners claim to be unemployed persons and, according to them, it is their complaint that appointments are being made in the Uttarakhand
Legislative Secretariat in various categories of posts contrary to the Statutory Rules. The posts include the posts of Peon, Reporter, Driver, Editor,
Guard, Review Officer, Assistant Review Officer and Additional Private Secretary. The matter, according to the petitioners, is governed by the
Statutory Rules, which have been framed in the year 2011 and are known as The Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and
Conditions of Service) Rules, 2011 (hereinafter referred to as the “Rulesâ€). The Rules have been produced as Annexure No. 1 to this writ
petition. Pleadings have been exchanged.
We heard Mr. Vinay Kumar, learned counsel on behalf of the petitioners, Mr. C.S. Rawat, learned counsel on behalf of respondent no. 2, who is
the Secretary, Uttarakhand Vidhansabha Secretariat, Dehradun and Mr. Avtar Singh Rawat, learned Senior Counsel on behalf of respondent nos. 34
to 65 and respondent nos. 66 to 69/party respondents, who are persons, whose appointments are sought to be made subject matter of this writ petition.
Expounding his case, Mr. Vinay Kumar, learned counsel on behalf of the petitioners would submit that under the Rules, the law-giver has
prescribed various qualifications; they are described as “essential qualificationsâ€. No advertisement was issued inviting applications; instead
applications were merely got from the candidates. In fact, in one of the applications, the applicant has requested that she may be considered for any of
the posts.
The case of the party respondents, as stated by Mr. Avtar Singh Rawat, learned senior counsel, is as follows:
The temporary capital of the State of Uttarakhand is located in Dehradun. Dilating on the movement, which led to the creation of the State of
Uttarakhand, it is contented that the people of the State of Uttarakhand wanted that the capital of the State should be located in a hill area. Though
Dehradun was declared as the temporary capital, a final decision is yet to be taken. The Speaker of the Legislative Assembly, who held the Office
from the year 2012, took the view that the Assembly must be located at Gairsain, which is situated in Chamoli District. This is in keeping with the
aspirations of the people. Accordingly, in order to achieve this object, urgent need arose to fill up various vacancies. The appointments, which have
been made in this case, are all ad-hoc in nature. This is borne out by the orders, by which the party respondents have been appointed. A perusal of the
order, according to him, would show that the Appointing Authority has made it clear that the appointees can be shown the door at any point of time.
He would submit that the appointees are possessed of all the essential qualifications (educational qualifications). This is the case, which is also sought
to be set up by Mr. C.S. Rawat, learned counsel appearing on behalf of respondent no. 2.
Per contra, Mr. Vinay Kumar, learned counsel for the petitioners would, with reference to Statutory Rules, submit that the Rules contemplate
substantive appointments; Rules do not actually provides specifically for ad-hoc appointments. It is also contended that as far as the posts of Assistant
Review Officer, Review Officer and Additional Private Secretary are concerned, apart from the educational qualifications, which is not in dispute, the
appointees were also expected to be possessed of certain other qualifications, as “essential qualificationsâ€. For instance, in regard to the post of
Additional Private Secretary the further requirement, apart from educational qualifications, is that the candidates must have the speed of 80 words per
minute in Hindi Shorthand. Apart from this, no doubt, preference was to be given to a candidate, who was having 80 words per minute speed in
English Shorthand. He also drew our attention to the appointment order and would point out the fact that the candidates, who were appointed as
Additional Private Secretary, who are arrayed as respondent nos. 66 to 69 in this writ petition, do not possess the qualification of speed in Hindi
Shorthand of 80 words per minute. Besides, he also poses a question that if the preferential qualifications are not considered, how a statute can be
complied with. Equally, in respect of the post of Review Officer, the qualification is fixed. For the post of Review Officer, the qualification is that a
person must be possessed of graduate degree from a University established by law in India; preference, no doubt, is to be given to a law graduate. As
far as the post of Assistant Review Officer is concerned, the Rules provide under the head ‘Essential’- Graduate Degree from a University
established by law in India and a minimum speed of 4000 key depressions in computer; Preference- at least one year diploma in computer science. As
far as the post of Driver is concerned, we notice that the petitioners have not made any of the Drivers party. Hence, there is no question of
considering their case at all. In regard to the post of Guard also, though some of them have been made parties, there is no specific case that, in terms
of the Statutory Rules, the qualifications are not actually possessed by the Guards. Hence, we do not see any reason to consider their case also.
At this juncture, it is necessary to notice certain other contentions raised by Mr. Avtar Singh Rawat, learned senior counsel. He would submit that
the Office cannot be described as a public office. He would contend that a writ of quo-warranto will lie only if there is violation of any statute
regarding qualifications. In this case, the appointments are not substantive in nature; they are ad-hoc; they were geared to attain an urgent object as
described above and the Court should not interfere in the matter. He would also point out that the orders appointing the party respondents, in regard to
the post of Assistant Review Officer and Additional Private Secretary, would show that they would have to establish that they have the technical
qualification within a period of six months, for which a test was to be conducted.
This is countered by Mr. Vinay Kumar, learned counsel for the petitioners and, in fact, it is enlisted in favour of his contentions by pointing out that
the tenor of the appointment order itself is sufficient to show that as far as candidates in the category of Assistant Review Officer and Additional
Private Secretary are concerned, they were not possessed of the qualifications at the time of their appointment. He would contend that the law cannot
be that they can acquire the qualifications at a later point of time; candidates must be possessed of the qualifications at the time when they are
appointed and they cannot be given any leeway to acquire the qualifications at a later point of time. What is sought in this writ petition is a writ of quo-
warranto. A writ of quo-warranto is essentially in the form of the information present to the Court, giving it the opportunity to call upon the answering
respondents to explain the title, under which they hold a public office. A writ of quo-warranto, in one sense, is a limited writ. The scope of the enquiry
is limited to finding out whether an appointment has been made to a public office, contrary to the mandate of the statute. It is quite clear that a writ of
quo-warranto, as such will not lie if there is no violation of any statutory provision. To be more clear, as for instance executive orders can provide for
the qualifications; appointment in the absence of any statutory Rules. In such a case, a writ of quo-warranto would not lie on the ground that the
answering respondents does not possess qualifications, as provided in the executive order for the reason that there is a fundamental distinction in the
executive order and the statutory provision. In this regard, we need only refer to the recent judgment of the Hon’ble Apex Court in the case of
Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and other reported in (2014) 1 SCC 161. Besides, we may also refer to the judgment of
the Hon’ble Apex Court in the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees’ Assn. and
others reported in (2006) 11 SCC 731(II).
After having decided this aspect, the specific question, which arises for our consideration, must further engage our attention. The question is what is
the nature of the appointments, which are the subject matter of the present writ petition. In order to understand the same also, we must go through the
Rules, which have been made. The first question, we must answer is whether the Rules are statutory in nature. The argument of the learned counsel
for the petitioners is that the Rules have been made under Article 187 of the Constitution of India. Article 187 of the Constitution of India reads as
follows:
“187. Secretariat of State Legislature.â€"(1) The House or each House of the Legislature of a State shall have a separate secretarial staff:
Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation
of posts common to both Houses of such Legislature.
(2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the
House or Houses of the Legislature of the State.
(3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative
Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of
persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law
made under the said clause.â€
Somewhat in similar way to the provisions of Article 309 of the Constitution of India, the power is lodged to make Rules in the absence of a law
made by the Legislature regulating the recruitment, and the conditions of service of persons appointed to the secretarial staff. It is, accordingly, that in
the year 2011 these Rules have been made in this case. Therefore, the Rules are not merely made under an ordinary statute; the Rules are made
under the Constitution itself and they stands perhaps on a higher pedestal. So the question would arise as to what exactly the Rules provide for. Rule
3(h) of the Rules defines
“Member of Serviceâ€. It reads as follows:
“3(h) “Member of Service†means a person who has been substantially appointed under these Rules or Rules or Orders applicable prior to
these Rules on a post in some cadre of service or is holding such post.;
Provided that for regularization of all employees appointed other than by substantive appointment, the Speaker may constitute a Selection Committee
which shall take action for the regularization of such employees according to due process;â€
“Service†means Uttarakhand Vidhan Sabha Secretariat Service. Rule 3(j) of the Rules defines “Substantive Appointmentâ€. It reads as
follows:
“3(j) “Substantive Appointment†means an appointment not being an ad hoc appointment, on a post in the cadre of the service and made after
selection in accordance with the rules and if, there were no rules, in accordance with the procedure prescribed for the time being by executive
instruction by the Government.â€
Rule 4 of the Rules provides for “Service Cadreâ€. Rule 5 of the Rules provides for the assessment of norms for posts in various cadres. It is
to be decided by a Committee headed by the Speaker. Rule 6 of the Rules provides that the recruitment is to be done either by way of direct
recruitment; or by promotion; or by service transfer, deputation and merger. Principle of reservation for candidates of Scheduled Castes, Scheduled
Tribes, Other Backward Classes and other Classes of Uttarakhand State shall be made in accordance with the orders in force at the time of
recruitment. Rule 8 of the Rules declares eligibility. Rule 9 of the Rules reads as follows:
“9. Educational and other qualifications â€" No person shall be appointed in service until he completes the prescribed qualification and experience
mentioned in column three and four Annexure ‘B’ respectively for posts of direct recruitment and those of other than direct recruitment.â€
Rule 11 of the Rules provides for the age of the candidate. Rule 12 of the Rules provides for the requirement relating to character of a candidate.
Rules 13 and 14 of the Rules need not detain us; it deals with other aspects. Rule 15 of the Rules deals with the determination of vacancies for the
purpose of recruitment. Appointing authority is defined under Rule 16 to be the Speaker in regard to appointment on all the gazetted posts and in
regard to all remaining posts the Principal Secretary/Secretary under the orders of the Speaker. The candidates are to produce various documents,
which are mentioned in Rule 16 of the Rules. Rule 17 of the Rules provides the procedure for direct recruitment; a Selection Committee shall be
constituted again headed by the Speaker. The Appointing Authority is to invite the application in the prescribed format for giving permission to appear
in the competitive examination (this deals with the posts in Group ‘C’). Various other aspects are provided therein. Part â€" 6 of the Rules deals
with the “Appointment, Probation and Confirmation†besides “Seniorityâ€. Rule 27 of the Rules incidentally taboos making of any
recommendations, either written or oral, other than those required under the Rules. Any attempt on the part of the candidate to enlist support directly
or indirectly for his candidature shall disqualify him for appointment. Rule 29 of the Rules provides for relaxation in conditions of service. Rule 30 of
the Rules reads as follows:
“30. Savings â€" 30(1). Nothing in these rules shall affect reservations and other concessions required to be provided for the candidates belonging
to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and Other special categories or persons in accordance with the
orders of the Government issued from time to time in this regard.
(2) The Speaker, in extraordinary circumstances and in consultation with the recruitment and promotion committee, can relax qualifications prescribed
in these rules except maximum age limit and educational qualifications.
(3) The orders under the provisions of these rules shall be certified in such manner and by such officer as the Speaker directs from time to time
through general and special orders.â€
Having set out the Statutory Rules, we must first pose and answer the question as to whether the appointments in this case can be treated as
substantive appointments. The orders of appointment produced before us, in no uncertain terms, declares that the appointments are ad-hoc. This
circumstance is to be taken along with the further condition in the order that services of the party respondents/appointees can be dispensed with at any
time. It also contemplates that selection is contingent upon selection being made under Rule 17(1), which we have noticed is the procedure related to
direct recruitment.
We can safely hold that the appointments are not made by a Selection Committee, as contemplated under Rule 17 of the Rules. They cannot,
therefore, be treated as substantive appointments.
Then the question arises as to whether appointments other than substantive appointments are permitted. Here, we notice the argument of Mr.
Vinay Kumar, learned counsel for the petitioners that in the year 2003, a Government Order has been issued prohibiting making of any ad-hoc
appointments in all the departments. This is answered to by Mr. Avtar Singh Rawat, learned senior counsel by pointing out that after the Rules, the
matter must be decided with reference to the Rules. The Court may also consider that the Office of the Speaker is an autonomous body as he belongs
to the legislative branch and the orders issued by the Government cannot take away his powers, if they are exercised otherwise.
We must, therefore, seek light from the Rules and find out, provided they shed any. We have noticed the definition of “substantive
appointment†in Rule 3(j) of the Rules. Rule 3(h) of the Rules specifically defines “Member of Service†as a person, who has been substantially
appointed under these Rules or Rules or orders applicable prior to these Rules on a post in some cadre of service or is holding such post. It is
important to notice the proviso however. The proviso declares that for regularization of an employee appointed other than by substantive appointment,
the Speaker may constitute a Selection Committee, which shall take action for the regularization. This, in our view, in itself, signals the intention of the
law-giver that appointments could be made, which are not substantive in nature. We find fortification for this view of ours in addition of the words
“substantive appointment†itself contained in Rule 3(j) of the Rules. Substantive Appointment is defined as an appointment not being an ad-hoc
appointment on a post in the cadre of the service and made after selection in accordance with the Rules. In our view, three circumstances, therefore,
point to the fact that the appointments in question are not substantive appointments and also that ad-hoc appointments are permissible. Firstly, the tenor
of the orders of appointment itself clearly and unambiguously declares that they are ad-hoc appointments. Secondly, such appointments do not appear
to be entirely tabooed by the Rules itself. Far from it, in fact, the Rules contemplate substantive appointment as the definition of the words
“substantive appointment†itself indicates that it does not cover a case of ad-hoc appointment. What is provided by necessary implication cannot
be said to be illegal. Interpretation of Statutory Rules cannot be limited to conclusions drawn from express provisions. Read with what is permissible
that, which is inevitable and which follows as the necessary corollary to the scheme of the Rules, must be treated as legal. The other circumstance, as
we have already noticed, is the proviso in Rule 3(h) of the Rules as it contemplates the power to regularize employees appointed other than by way of
substantive appointment. The cumulative effect of these circumstances is that we would think that the appointments cannot be treated as substantive
appointments and they are to be treated as ad-hoc appointments.
This brings us to another interesting question as to what is the concept of ad-hoc appointment. The substantial reason is that whether a writ of
quo-warranto will lie if an ad-hoc appointment is made of persons, who are not possessed of qualifications provided under the Rules. In this case, we
have to find out what is the concept of ad-hoc appointment, as understood by the Courts. We need only refer to the decision of the Hon’ble Apex
Court in the case of Rudra Kumar Sain and others Vs. Union of India and others reported in (2000) 8 SCC 25. The Constitution Bench of the
Hon’ble Apex Court had this to say on the issue:
“16. The three terms “ad hocâ€, “stop gap†and “fortuitous†are in frequent use in service jurisprudence. In the absence of definition of
these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service
matters. The meaning given to the expression “fortuitous†in Strouds Judicial Dictionary is “accident or fortuitous casualtyâ€. This should
obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not
continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High
Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period,
then the same cannot be held to “fortuitousâ€. In Blacks Law dictionary, the expression “fortuitous†means “occurring by chanceâ€, “a
fortuitous event may be highly unfortunateâ€. It thus, indicates that it occurs only by chance or accident, which could not have been reasonably
foreseen. The expression “ad hoc†in Blacks Law Dictionary, means “something which is formed for a particular purposeâ€. The expression
“stop-gap†as per Oxford Dictionary, means “a temporary way of dealing with a problem or satisfying a needâ€.
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In Oxford Dictionary, the word “ad hoc†means for a particular purpose; specially. In the same Dictionary, the word “fortuitous†means
happening by accident or chance rather than design.
In P. Ramanatha Aiyers Law Lexicon (2nd Edition) the word “ad hoc†is described as: “for particular purpose. Made, established, acting
or concerned with a particular (sic) and or purposeâ€. The meaning of word “fortuitous event†is given as “an event which happens by a
cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of
God.â€
The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the
context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority
of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be
necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order.
If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then
the appointment to such a post can be aptly described as “ad hoc†or “stop-gapâ€. If a post is created to meet a situation which has suddenly
arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as “fortuitous†in
nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due
to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be
called as a “stop-gap†arrangement and appointment in the post as “ad hoc†appointment. It is not possible to lay down any straight-jacket
formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As
such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the
scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers
in the cadre.
In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed
with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held
to be “stop-gap or fortuitous or purely ad hocâ€. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in
the Delhi Higher Judicial Service in the case in hand was held by the High Court to be “fortuitous/ad hoc/stop-gap†are wholly erroneous and,
therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.â€
We must, having referred to this understanding of ad-hoc appointment, also make reference to the judgment in the case of B.Srinivasa Reddy Vs.
Karnataka Urban Water Supply & Drainage Board Employees’ Assn. and others reported in (2006) 11 SCC 731(II). In the said case, the issue
was regarding the legality of the appointment to the post of Managing Director. The High Court interfered with the appointment of the appellant; the
Court noted that under Rule 3 the Karnataka Urban Water Supply and Drainage Board Rules, 1974, the qualification for appointment of Managing
Director was express in the words “The Managing Director shall be a person having experience in administration and capacity in commercial
matters.†The Court noted that there was not even a pleading that the appellant does not have experience in administration and capacity in
commercial matters. The Court, thereafter, proceeded to advert to the law relating to writ of quo-warranto. Further, it was held as follows:
“49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to
whether a case has been made out for issuance of a Writ of Quo Warranto. The jurisdiction of the High Court to issue a Writ of Quo Warranto is a
limited one which can only be issued when the appointment is contrary to the statutory rules.
It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be
appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain vs. Union
of India, (1993) 4 SCC 119 was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest
litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is
settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that a third party has no
locus standi to canvass the legality or correctness of the action. Further, it was declared that only public law declaration would be made at the behest
of public spirited person coming before the Court as a petitioner having regard to the fact that the neither of respondent Nos. 1 and 2 were or could
have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of Quo Warranto so
very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings
brought before the Court by an aggrieved party who was a candidate for the post.
It is useful to refer to University of Mysore vs. C.D.Govinda Rao, SCR at pp. 580-81:
“As Halsbury has observed:
‘An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or
usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be
determined.’
Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or
franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and
in case the finding is that the holder of the office has not title, he would be ousted from that office by judicial order. In other words, the procedure of
quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from
being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be
allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively
claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority,
and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.â€
We may, incidentally, also notice that this is a case of an appointment, which was to last until further orders. The appointment, apparently, was
contractual in nature. There is no direct decision, as such, throwing light on the question as to whether a writ of quo-warranto will lie when the
appointment is a “stop-gap†arrangement or a “fortuitous†appointment or it is an appointment, which is “ad-hoc†in nature. Ordinarily,
writs for quo-warranto have been filed where the appointments are made in a regular way, but contravening the statute. It is this and this alone, which
attracts the jurisdiction under the writ of quo-warranto. But in this case, we have already noticed that the appointments in question are not substantive
in nature and, therefore, this is, in that sense, different from the stream of cases, which have generated the case law relating to quo-warranto being
available where statute is violated. Therefore, we must first ascertain as to whether a writ of quo-waranto could be issued when it is claimed by the
authority that the appointment is not a regular or a substantive appointment under the statute, but it is an appointment, which is made ad-hoc. Whether
it is the law that even in such cases, a candidate must be possessed of the qualifications under the Rules? If so, whether a writ of quo-warranto will lie
if the Rules are contravened? What is the Court’s power to interfere?
Before we proceed to do that, it becomes necessary for us to deal with the contention raised by Mr. Avtar Singh Rawat, learned senior counsel
that in this case, the post is not in a public office.         At the bar, there is no           dispute that the
appointments  of the party respondents have been made against posts. A vacancy arises against a post. In this case the vacancies have arisen
consequent upon the posts being created from time to time. About this, there is no dispute that the posts are in the Legislative Secretariat. Mr. Avtar
Singh Rawat, learned senior counsel would submit that there is no power, which is wielded by the incumbents of the posts, namely, party respondents
and there is no obligation and, therefore, there is no public office.
We would think that this argument cannot be accepted. In the case of Pashupati Nath Sukul Vs. Nem Chandra Jain and others reported in (1984)
2 SCC 404, a question arose before the Hon’ble Apex Court in the context of Articles 102(1)(a) and 191(1)(a) of the Constitution of India and the
question was whether an officer of the Legislative wing could be said to be a Government Servant. The Court had this to say on the issue (pg. 405):
“From the legal point of view, government may be described as the exercise of certain powers and the performance of certain duties by public
authorities or officers, together with certain private persons or corporations exercising public functions. The structure of the machinery of Government
and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes to some
extent the mode in which these powers are to be exercised or these duties are to be performed. Government generally connotes three estates, namely,
the Legislature, the Executive and Judiciary, while in a narrow sense it is used to connote the Executive only. The meaning to be assigned to that
expression, therefore, depends on the context in which it is used.
The word ‘Government’ in Article 102(1)(a) and in Article 191(1)(a) of the Constitution and the word ‘Government’ in the expression
‘an officer of Government’ in Section 21 of the Act should be interpreted liberally so as to include within its scope the Legislature, the
Executive and the Judiciary. There is no watertight compartment between the three major organs of the State. An officer of the State Legislature,
though belongs under Article 187 to the staff of the State Legislature, is still an ‘officer of Government’ in the sense the expression
‘Government’ is used in Articles 102(1)(a) and 191(1)(a). Therefore, such an officer has to be treated as an officer of Government for
purposes of Section 21 of the Act also qualified for being appointed as the Returning Officer for an election held under the Act. Even though Articles
98 and 187 contemplate the establishment of a separate secretariat staff for each House of Parliament and of the State Legislature respectively, the
salaries and allowances of the members of that staff are paid out of the Consolidated Fund of India or of the State, as the case may be, after they are
voted by the House or Houses concerned. Their appointment and other conditions of service are regulated by rules made by the President or the
Governor, as the case may be, until an appropriate law is made by Parliament or the State Legislature, as the case may be. Parliament all along has
treated the Secretaries of the State Legislatures as officers of Government for purposes of Section 21 and has found it convenient to do so having
regard to the nature of the work to be carried out by them. Therefore, the Secretary of the U.P. State Legislature could be appointed as the Returning
Officer for the election to the Rajya Sabha.â€
We cannot possibly hold that when persons are appointed in the Legislative Secretariat against posts, which are created under the Government
Orders and persons are appointed, even if it is by way of an ad-hoc arrangement, it could not be said that they are not holding a public post. The State
consists of three wings, namely, the Legislature, the Executive and the Judiciary. They relate to different functions of the State. They are all stamped
with the characteristic of Public Service. The employees, be it in the Legislative Secretariat or in the Executive or in the Judiciary, are discharging
public duties attached to their Office. We are, therefore, of the view that the party respondents are indeed persons holding public office. Having said
so, the question now arises as to whether because the party respondents are appointed in the manner done, namely, as ad-hoc appointees, the
Appointing Authority is freed from its obligations of Statute to make appointments in conformity, at least, with the essential qualifications.
In the case of Dr. Anuradha Bodi and others Vs. Municipal Corporation of Delhi and others reported in (1998) 5 SCC 293, the Hon’ble Apex
Court held as follows:
“10. The propositions laid down by the Constitution Bench in the aforesaid case are set out in Paragraph 47 of the judgment. We are concerned
with only Conclusions (A) and (B) which read as follows :
“(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according
to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the
officiation in such posts cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but appointed continues in the post uninterruptedly till the
regularisation of his service in accordance with the rules, the period of officiating service will be countedâ€.
These two clauses have been explained in a subsequent judgment in State of West Bengal v. Aghore Nath Dey. The relevant passages in the said
judgment read as follows:
“21. We shall now deal with conclusions (A) and (B)of the constitution bench in the Maharashtra Engineers case quoted above.
There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly
excluded by conclusion (A). We may, therefore, first refer to conclusion from the date of initial appointment and not according to the date of
confirmation, the incumbent of the post has to be initially appointed `according to rules'. The corollary set out in conclusion (A), then is, that `where the
initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot betaken into
account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is
only ad hoc and not according to rules, being made only as a stopgap arrangement.
The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into
account for counting the seniority.
This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with
cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those
cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in
conclusion (A).
In out opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the
deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, `if the initial
appointment is not made by following the procedure laid down by the `rules' and the latter expression `till the regularisation of his service in
accordance with the rules'. We read conclusion (BH), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial
appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to
the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointment on the date of initial appointment in
such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of
the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to
be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the
regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural
requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed remaining procedural requirements
of the rules being fulfilled at the earliest. In such cases all appointee is not to blame for the initial appointment, and the appointment not being limited to
a fixed period of time is intended to be regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest.
In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of
the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is
different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not
according to rules.â€
It, therefore, could be said that when a person is appointed de hors the Rules in an ad-hoc way, as far as granting the benefit of seniority is
concerned, it would be denied to a person, who did not have the qualifications as per the Rules and this case will be covered by conclusion ‘A’
of the Direct Recruit’s case (supra). But this decision does not really deal with the question as to whether a writ of quo-warranto will lie if
appointments are made contrary to the Rules in the sense that a person is not formally selected by a Selection Committee, but the appointment is made
without him being possessed of the essential qualifications. Whatever be the mode of appointment, when different modes of appointment are provided,
we would take the view that Appointing Authority may not be freed from its obligation in appointing in terms of the qualifications. It may be true that
the selection may not take place as per procedure prescribed under the Rules, but even then the appointments, be they made under the category of ad-
hoc appointments, we cannot visualize a situation when the Appointing Authority will be left free to make appointments de hors qualifications fixed
under the Rules. If that is so, a question would necessarily arise, whether in a case such as this, where the appointments are not substantive, as we
have already noticed but are ad-hoc, a writ of quo-warranto will lie.
A writ of quo-warranto, as we have noticed, will lie only if there is violation of statute. We have reasoned that the statute itself contemplates
appointments being made ad-hoc, but that is not the same as saying that when ad-hoc appointments are made, the law-giver intended to free the
Appointing Authority from the requirement that the appointments are made of persons, who are possessed of at least the essential qualifications.
Having reached this determination, we must now pass on to the consideration of the impact of this in the facts of the case. As far as the complaint of
the petitioners regarding the posts of Reporter, Editor, Driver and Peon is concerned, we refuse to go into the question for the simple reason that none
of the persons, who are appointed in the said capacity, have been made parties. In regard to the post of Guard also, there is no specific allegation
against them. Any determination of a right or a question vitally affecting their rights cannot be made in their absence and the case in regard to these
categories will stand rejected. As far as the post of Review Officer is concerned, we notice that the qualification is graduation and there is no case for
the petitioners that the Review Officers are appointed from among persons, who are not having the requisite qualification. Therefore, the said case of
the petitioners against the Review Officers will also stand rejected.
Then remains two categories: one is the post of Assistant Review Officer and the other is the post of Additional Private Secretary. In this regard,
we would think that there is some merit in the case of the petitioners. We have noticed the essential qualifications. Apart from being graduates, the
candidates were expected to possess certain other skills. These skills are not treated as desirable or preferential, but they come under the category of
essential qualifications. These requirements are statutory in nature. The appointment order reveals that Authority has given six months’ time to the
appointees to establish their skills. Some documents have been produced to show that the candidates produced certificates to show that they have the
requisite qualifications. But Mr. Vinay Kumar, learned counsel for the petitioners points out that the certificates do not show that they had the requisite
skills. Mr. Avtar Singh Rawat, learned senior counsel for the party respondents would, on the other hand, point out that these persons had produced
certificates at the relevant time, namely, at the time of filing the application, which show that they had the requisite technical skills.
We would think that in the nature of the determination to be made and with the material, which we have, we may not be in a position to pronounce
on this aspect as such, but at the same time, we cannot leave this question without appropriate relief being granted. We may notice one aspect in this
regard. Ad-hoc means for a particular purpose. The purpose is, according to the party respondents, tending after the potential new capital of the State
of Uttarakhand to be located at Gairsain and the teething problems associated with such a momentous decision requiring urgent appointments to be
made. We notice that the appointments were made in the year 2016. The appointments are continuing. In fact, the appointments were to be given
approval in the form of regularization, which this Court had stayed.
The appointments, even if they are classified as ad-hoc, which, it was, in fact, contemplated that it will be subject to the regimen under Rule 17,
indeed could not have been made in violation of the Statute at least as regards the essential qualifications. Having made this determination, we are of
the view that the second respondent will look into the appointments made in regard to the category of Assistant Review Officer and Additional Private
Secretary alone from among persons, who are made parties in this case. He will ascertain, with reference to the documents, as to whether there were
certificates produced by concerned employees, which clinchingly, at least, claimed that they had the requisite technical skills at the time of their
appointment. If they are found to be without the said certificates, we make it clear that their appointments will be treated as illegal. This exercise will
be concluded by the second respondent within a period of six weeks from the date of production of certified copy of this judgment. Till such time a
decision is taken in the matter, no further steps will be taken in their case for regularization.
The writ petition will stand disposed of as above.